Civ Pro Checklist (1)

8/3/2019 Civ Pro Checklist (1)

http://slidepdf.com/reader/full/civ-pro-checklist-1 1/25

Civ Pro Outline- Condensed checklist format

For each claim, go through the following process:

List the claims

Is there personal jurisdiction? Traditional Basis

Domicile (Milliken)

Presence (Burnham)

Agent (Kane)

Consent

• Expess (Carnival)

• Implied (Hess)

• Waiver (Saenger, 12(b)(1) + 12(g))

Objections

•

Special appearance♦ State (Koplin)

♦ Federal (12(b)(2)

♦ Appealability

• Ignore suit + collateral attack

• (Glannon p. 53 for possible scenarios)

Does the long arm statute authorize PJ?

Enumerated Act Long-Arm Statutes

• Must be specific PJ

• Bulge Area (Gray)

Coextensive long-arm statutes

• Interpret specific categories as liberally as DPC allows

Federal Courts: FRCP 4k

• Look to state’s LA

• Bulge rule

• Authorized by federal statute

• FQ case AND no state would have PJ AND it wouldn’t violate the Const.

Is this authorization constitutional?

When to ask

• If in personnam or in rem (Shaffer extends Int Shoe)

Minimum Contacts Test (does auth violate the DPC?)

• Time: Time when D acted, not time of lawsuit• Specific or General (International Shoe)

♦ General

Systematic and continuous (Perkins)

Not unilateral activity of a third-party (Helicopteros)

Maybe just corporations (Burnam)

Policy: forum shopping



♦ Specific

General rules/ scenarios

Purposeful availment, no unilateral contacts (Hanson)

Harmful act outside state causes harm w/in (Calder)

Single act/ breach of K (McGee)

Continuous but limited/ franchise (Burger King) Stream of commerce analysis

• Ongoing flow of D’s goods into forum state through adistributor or final manufacturer

♦ Stream of Commerce + aim (Asahi plurality)

♦ Forseeability (Asahi dissent)

• Manufacturer deliberately cultivates in-state market(WWVW)

Internet

• Sliding scale (Zippo)

• Modified Zippo/ no zippo/ expanded Zippo (Snowny) Domestic dispute/ minor activity insuff. (Kulko)

Traps

Better ops elsewhere irrelevant (Hustler)

Unilateral activities of third party irrelevant (Hanson, WWVW)

Fair play and substantial justice

PJ presumptively reasonable once minimum contactsestablished, burden on D to prove FP&SJ prob (Burger King)

Primary concern: Extent of inconvenience to D forced todefend away from home (Asahi)

Soft factors: Convenient forum for P, interest of states inenforcing substantive law/ policy, interest of forum state in providing redress to its cits (Hustler, Asahi)

Is there subject matter jurisdiction?

Federal Question Jurisdiction

Note Constitutional Basis (Art. III.2)

Statutory Basis (28 U.S.C. 1331), more narrowly interpreted

Exclusive

• State cause of action/ avoidance (Luckett)

• Types

♦ Securities-law Class actions

♦ Bankruptcy♦ Patent

♦ Actions against foreign consuls and vice consuls

♦ Actions to recover fine, penalty or forfeiture under fed law

♦ Actions involving certain seizures

Analysis

• 1. Federal ingredient approach (Osborn), now rejected



• 2. Well-Pleaded Complaint Rule determines what to info to look at whendeciding if it arises under federal law.

♦ Did P have to raise fed issue in a complaint which includes theleements she needs to prove to establish her claim and only thoseelements? (Mottley)

♦ Only P’s claims matter (Vornado)♦ Declaratory judgments (Skelly Oil)

♦ No “artful pleading” (Betchel)

• 3. Does the claim “arise under” federal law?

♦ Federal cause of action

Arising under: Holmes creation test (American Well Works)

ALSO need Federal-law created private cause of action

Assume not intended unless express

Implied if 4 factors met (Ash)

Constitution can provide (Bivens)

Exception: fact intensive, swing on local meaning, rules(Shoshone)

♦ State Cause of Action

Arising under: Holmes creation test (American Well Works)

Exception: In order to establish a state law claim, P must prove a proposition of federal law (Smith v. Kansas City)

Embedded federal question must be sufficiently substantial

• No: Merrell Dow, no private cause of action intended for FDCA violations

• Yes: Grable & Sons, (necessarily raise, actually disputedand substantial, division of powers)

• No: Empire Health Choice: Narrows Grable to signif futureimpact pure legal question and federal agency (not 2 private parties or factual issues)

Supplemental Jurisdiction- Federal Question. 1367(a)(c)

1. Constitutional Authority

• CNOF for jurisdictionally insufficient and sufficient claims (Gibbs)

2. Statutory authority

• Required for jurisdictionally improper pendant and ancillary claims(Aldinger, Kroger, Finley)

• 1367(a) Codifies Gibbs

♦ CNOF, including joinder • 1367(c) Discretionary factors (Codifies Gibbs)

♦ New state law issue, state predomination, orig jur issues dismissed,other compelling reasons

• 1367(d) Statute of Limitations

Diversity Jurisdiction

Constitutional Basis: Art. III.2

Statutory Basis: 28 USC 1332



Diversity of parties (1332(a))

Basics

• Time: Citizenship at the time the complaint was filed is relevant.

• Complete diversity required (Strawbridge)

Parties

• Individuals♦ Domicile = physically move w/ intent to remain indefinitely (Mas)

♦ Aliens = citizens of their state of residence

• Corporations: 1332(c)

♦ 2 citizenships: states of (1) incorporation and (2)principal place of bus

PPB: (1) Nerve Center (Egan), (2) Operating assets, (3) Totalactivity test (Teal)

Conflict btw headquarters and daily activity daily activity

• Insurance Companies: also cit of insured’s state (1332 (c))

• Unincorporated Associations

♦ cit of every state in which one of its members is a citizen• Representative Actions (Class actions, derivative suits, etc)

♦ Look to representative, not represented party, unless minors, estates,incompetents. 1332 (c)

Controls on Gamesmanship

• Only real parties matter; can’t just bring in to destroy diversity (Rose)

• Can’t just bring in to create diversity (Kramer)

AIC Requirement

Statutory requirement: 1332 (a): “must exceed 75k, exclusive of interests andcosts

• Test: To reject, (1) legal certainty that claim is really for less than jurisdictional amount, and (2) P must have op to show good faith (A.F.A.Tours)

• Damages: Regular + Punitive included. Injunctions tricky.

Aggregation rules

• Single P, Single D, can aggregate everything (Everett)

• Single P, Multiple Ds, can’t aggregate, can’t bootstrap

• Multiple Ps, Single D.

♦ Separate and distinct claims: can’t aggregate

♦ Single title or right, with a common and undivided interest: canaggregate (Durant

♦ One meets AIC req and the other doesn’t: Can use supplemental jurisdiction to bootstrap if same case or controversy. (Exxon Mobil,reverses Zahn)

*Do a supplemental jurisdiction analysis in this case.

Exceptions

Domestic relations cases involve only divorce, alimony, child custody(Ankenbrandt)

Probate (Estate planning, no SMJ). (Marshall)



Supplemental Jurisdiction in Diversity Cases (1367)

(1) Constitutional Authority

• CNOF for jurisdictionally insufficient and sufficient claims (Gibbs)

(2) Statutory authority

• Required for jurisdictionally improper pendant and ancillary claims

(Aldinger, Kroger, Finley)• 1367 (a) Codifies Gibbs

♦ CNOF, including joinder

• 1367 (b) limits to prevent gamesmanship in diversity jurisdiction

♦ No supplemental juris over claims against persons made parties under:

FRCP 14, 19, 20 or 24

♦ Applies only to claims by Ps (or Ps joined under 19 or 24)

♦ Typically okay if claims = P1 v. D1, or D1 v. third party

♦ Typically problematic if claims = P1 against parties added to the suit,or by Ps who come in through joinder.

♦ Rule 14: Third party practice♦ Rule 19: Compulsory joiner

♦ Rule 20: Permissive joinder

♦ Rule 24: Intervention

• 1367(c) Discretionary factors (Codifies Gibbs)

♦ New state law issue, state predomination, orig jur issues dismissed,other compelling reasons

• 1367(d) Statute of Limitations

Class actions, see separate section.

Removal, Venue, Transfer of Venue, Forum Non Conveniens, Waiver

Removal

Rationale: same protections to D

Statutory basis: 28 USC 1441

Rules

• 1. Only an original D can remove (28 USC 1441(a))

♦ P can’t remove based on D’s counterclaim (Shamrock)

♦ Third-party D can’t remove (First National Bank of Pulaski)

♦ Multiple Ds: all must agree to remove (Chicago, R.I. & P.Ry. Co.)

1441(a) “Defendants”

• 2. Action could originally have been filed in the fed court (28 USC1441(a))

♦ Federal court must have SMJ Doesn’t matter if orig state court didn’t (28 USC 1441(f))

♦ Action could originally have been brought in fed court

1367 applies in removal (Int’l College of Surgeons)

• 3. Citizenship and its effect (28 USC 1441(b))

♦ Federal question: D can remove regardless of his citizenship

♦ Diversity



Single D: can’t remove if cit of state where action was brought

Multiple Ds: None can be cit of state where action was brought

Interstate class action exception (min diversity and $5mil),removable w/o regard for whether Ds are from forum state andw/o need for consent of all Ds. (CAFA)

♦ Joinder Case removed as a whole, subject to fed discretion (Gibbs)

1441(c) Joinder Removal together

• 4. Only remove to fed dist court in the same district originally filed, evenif this wouldn’t have originally be the proper venue. 28 USC 1441(b)

Mechanics

• Filing: 1446(a)

• Uncertainty: can allege unknown to demonstrate grounds (1446(a))

• Multiple Ds, some not yet served

♦ only Ds actually served need to join in removal 1446(b)

♦

D can move for remand after joinded if don’t like removal. 28 USC1448, Hutchins

• Timing: 30 days w/in receipt/ amend, diversity only w/in one year of commencement of action. 1446(b)

• Notice to state court: 1446(d), 1447(c)

• State court post-removal: freezes 1447(c)

• Challenging removal and waiver 1447(c)

♦ SMJ basis anytime

♦ Other basis w/in 30 days of filing of notice of removal.

• Challenging PJ after removal: fine. Removal isn’t a waiver of objection.

Venue

Purpose: convenience of parties, judicial economy. Statutory question.

Federal venue provision: 28 USC 1391

• Diversity cases (a)

♦ (1) All Ds reside in same state district where any D resides

♦ (2) Dist where substantial part of events/oms giving riseclaim oc’d

♦ (3) Default: only if the other 2 won’t work: district where any D issubject to PJ at the time the action is commenced.

• Federal question cases (b) (juris not founded solely on diversity)

♦ (1) All Ds reside in same state district where any D resides

♦ (2) Dist where substantial part of events/oms giving riseclaim oc’d

♦ (3) Default: District where any D may be found• Meaning of “reside” under (a)(1) and (b)(1)

♦ Individuals: domicile in district (not state)

♦ Corporations: 1391(c)

(1) Traditional domicile in each district (incorp/ PPB)

(2) Minimum Contacts analysis/ PJ analysis for each district

General PJ may apply where no PPB



(3) Default: district w/ most significant contacts

♦ Unincorporated Associations: treat like corps for venue (Denver)

• Meaning of “substantial” under (a)(2) and (b)(2)

♦ Broad interpretation

♦ Trademark decision to market + district where sold (Pilates)

♦ Products Liability manufactured + cause injury♦ Debt debtor resides where receive collection notice (Bates)

• Meaning of “found” under (b)(3)

♦ Individuals: Prob. Service of process

♦ Corporations: prob anywhere subject to PJ

• Exceptions

♦ Patent and copyright cases (28 USC 1400)

♦ Patent infringement cases: 28 USC 1400b

♦ Interpleader actions and actions against fed officials

♦ Local actions (interest in land)

• Consent♦ Waiver: 12(h)(1)- must file objection or its waived [even if original

venue improper: 1406(b)]

♦ Forum selection clauses: generally upheld if fair (Carnival Cruise)

• Removal and Venue

♦ 1391 only applies to cases commenced in fed court, not state removal.

Transfer of Venue

• Basics: from one fed ct another, either party can initiate

• 2 scenarios

♦ (1) Original venue choice was proper. 28 USC 1404(a)

(1)For convenience or parties, wits, in interest of justice (fact dep)

(2) Transferee court must = court where action might have been brought

Burden of proof: on party initiating the transfer

♦ (2) Original venue choice was improper. 28 USC 1406

Court may (1) dismiss or (2) transfer to district where case mighthave been brought, prefer transfer

OK if transferor court lacks PJ (Goldlawr), but potential for SoLgamesmanship (Ferens)

• Meaning of “might have been brought” : can’t agree to transf to improp(Hoffman)

• Choice of Law and Transfer ♦ Only applies to 1404(a) transfers where original venue was proper

♦ Rule: choice of law rules follow w/ the transfer (Van Dusen)

Gamesmanship: Ferens

Forum Non Conveniens



What: Common law doctrine, can dismiss when SMJ, PJ, venue valid butcrappy, useful when state court isn’t working since st courts can’t transfer toother state courts or to foreign courts.

Factors to consider w/r/t motion based on principle of forum non (Gilbert)

• (1) Is there another sufficient open forum?

• (2) Balancing test: Private interest of litigant v. factors of public interest Less favorable substantive law in another forum isn’t enough to defeat (Piper)

Insufficient alternative forum will defeat (Nemariam)

Default forum = P’s choice (Piper)

Standard on appeal: abuse of discretion (Piper)

Choice of law: can be compelling reason for dismissal

Sweetening the pot (Piper)

P’s ties to forum: greater ties = greater inconvenience to P to move (Wiwa)

• Nationality: less likely to award f.n.c. for Amreicans than for foreigners

PJ: District court can respond to forum non plea before addressing other

threshold objections such as PJ. (Sinochem) Choice of Law:

Evolution

Rules of Decision Act (laws of the several states except…)

Swift and the potential for gamesmanship (natural law view)

Erie: Repudiates Swift. Laws of the several states include common law.

What is the state law?

Older trend: Follow existing state precedent, even if it’s a district court(Fidelity) no predictions w/r/t future changes (West)

Modern trend: More flexibility

• Predict how state supreme court would decide if no decision (Bosch)

• Certification st supreme court, but expensive

• Generally follow supervisory federal court’s predictions on state law

• Gamesmanship: file in fed court if want law to change, it might but hasn’tyet, b/c they can anticipate change, st. court bound by stare decisis.

Which state law should the court apply? (Vertical uniformity, horizontal chaos)

Different state tests:

• Interest analysis: consider interest of each affected state in ap’ing own law

• Most significant relationship: expectations, policy interests, uniformity

• Many others exist

Federal test for choosing state law:

• Apply forum state’s choice of law rules in a federal diversity case. Klaxon,applying policy underlying Erie.

• Gamesmanship: forum shop btw fed courts in dif states/ st courts in dif sts

Transfer of venue

• Federal

♦ 1404 transfer (1) use orig court’s choice of law rules, (2) determinewhat state substantive law would be under Erie, apply it. Van Dusen



♦ Op for gamesmanship

• State

♦ One state CAN’T transfer to another state court.

Choosing between federal and state law

Evolution

• State law must be applied when it’s a substantial right. Dunlap• Outcome-determinative test: signif affects the result of litigation, follow

the state rule. SoL state when o.d. York

• Outcome-determinative test + any countervailing federal policies that arisefrom a fed court’s status as an indep judicial system. Byrd

♦ but state procedural rules can still sometimes supercede FRCPs

Hanna rescues the FRCPs

• Facts: service of process o-d

• Hanna part 2:

♦ When: FRCP or FRAP or statute in the picture

♦ (1) Is it valid? Authority

Art.III Necessary and Proper Clause authorizes adoption of federal rules of procedure

REA. Congress and the Court have power under the REA to promulgate any rule that is (1) “arguably procedural” and (2)Doesn’t abridge, enlarge, or modify a substantive right.”

Test

(a) arguably procedural (Hanna, Sibbach)

(b) Does it abridge, enlarge or modify a substantive right?

• Not necess to det for fed statutes- don’t fall under REA

• FRCPs rarely violate, heavy presumption of validity

• Would have to affect D’s primary behavior.

♦ (2) Is it applicable

Issue: Direct collision btw Fed rule and state law?

Test: Is the FRCP’s scope sufficiently broad to cover the issue?

FRCP 8(c) exception: glannon 222, q2 [construed narrowly]

♦ (3) Outcome

Yes to (1) and (2) go w/ FRAP, FRCP, or statute

No to any do Erie part 1 analysis

♦ (4) Outcome = follow fed law, mention what York outcome would be

• Hanna Part 1 (Erie test)♦ When: Analyze choice btw uncodified fed judicial practice & state law

♦ (1) Modified outcome-determinative test, using Erie twin aims (a) prevent forum shopping, (b) prevent inequitable administration of laws

i.a.: fed approach would open up a sig diff. in litigationopportunity, viewed prospectively (Hanna)



Exists where allow suit to go forward in fed that would be barred in state court (Walker)

♦ (2) Mention Hanna concurrence (stricter test): Would difference affect primary conduct?

♦ (3) York analysis: Compare how York o-d would have turned out.

♦ (4) Byrd test: If state law wins, should a countervailing fed interest(status as indep judicial system) make fed law trump anyway?

Joinder of Claims and Parties

Joinder of Parties

FRCP 19 compulsory joinder

• Is the absent party a required party under FRCP 19(a)?

♦ In that person’s absence, court can’t accord complete relief (1)(A)

♦ That person claims an interest in the action, and disposing of the actionin the person’s absence may: (1)(B)

(i) Impair or impede the other person’s ability to protect thatinterest. Haas (stock)

(ii) Leave an existing party subject to a substantial risk of incurringdouble, multiple, otherwise inconsistent obligs b/c of the interest.

• If the absent party should be joined, can he/she be joined?

♦ SMJ? 28 USC 1367(b) lists FRCP 19- this could destroy diversity

♦ PJ? FRCP4(k)(1)(b) bulge rule comes in handy- can get PJ whenotherwise couldn’t in fed court if it’s a compulsory joinder

♦ Venue? FRCP 19(a)(3) and objections improper

• If the absent party should be joined and can’t be, what happens?

♦ 3 options:

Let the case go on w/o the absent party

Dismiss the case Go forward w/o the absent party, guided by FRCP 19(b)

discretionary factors

FRCP 20 Permissive Joinder

• Test: you may join any parties whose claims (P joinder) or potentialliability (D joinder)

♦ (1) stem from same T&O/ series of T&Os, AND

♦ (2) There’s at least one common question of law or fact

♦ Liberal application in favor of efficiency and consistency.

FRCP 14: Impleader (Third Party Claims)

• Rule: Defending party may serve a summons and complaint on a nonpartywho is or may be liable to it for all or part of the claim against it. Efficient b/c consolidate.

• Liabilitiy: third party D is liable to original D (3rd party P), not P1

• Getting off the hook: 14(a)(2)(C), defeat P’s original claim/ 14(a)(2)(A),defeat D’s derivative claim.

• Impleading multiple parties: fine, they may all be liable, or alternatively

• Narrower than 20 and 13.



• SMJ: must still exist, treated like a brand new action and must meet allFRCP requirements. SMJ may exist through 1367

• Diversity: measured between 3rd party P and 3rd party D, doesn’t destroydiversity of original claim, might get through supplemental jurisdiction(prevent gamesmanship)

FRCP 13(h): Joining parties on a crossclaim or counterclaim• FRCP 19 and 20 govern the addition of parties to ccs & ccs

• Remember that crossclaims require same T&O

Joinder of Claims

Claim Joinder: FRCP 18

• No T & O requirement once there’s already a proper claim against same party

• Very broadly construed (Tenet)

• Res Judicata concerns good to bring everything with same T&O

• Still need SMJ over all claims

•

FRCP 42(b) severability• FRCP 21 misjoinder- not a ground for dismissing action.

Counterclaims: FRCP 13(a-f)

• Compulsory counterclaims (13)(a)

♦ Arise from same T&O as claim

♦ Don’t require adding another party over whom court can’t get juris

♦ All Ds must file- not just original (includes cross-claims)

♦ Exceptions: FRCP 13(a)(2), include no PJ + no waiver

♦ When in doubt, treat as compulsory, broad treatment (Heyward)

• Permissive counterclaims (13)(b)

♦ Any non-compulsory counterclaim

♦ 42(b) usually severed

♦ Added by any D (not just original)

♦ D can bring in either pending action by same P (Pickard)

♦ Watch out for SMJ!

No ancillary jurisdiction

Cross-claims: FRCP 13(g)

• Same side of the v

• Permissive.

• Must be same T&O, may include indemnification

• Look out for SMJ

• Parties who are cross-claimed against must file any compulsorycounterclaims.

• See 13(h) for joining parties on cross-claims.

Consolidation: FRCP 42(a)

• Court can consolidate multiple pending actions (or issues) that are in thesame court and deal w/ a common question of law or fact.



• Note: If not yet in same court, would have to transfer venue beforeconsolidating.

Supplemental jurisdiction

• **1367 in FQ and SMJ sections

Notice, Service of Process & the Opportunity to be heard

Notice Purpose : DPC

Constitutional adequacy : 14th DPC (Mullane)

• Reasonably calculated to apprise

• Reasonable method

• Reasonable time

Factors

• See outline

• Mail generally ok

• Newspaper generally disfavored (Walker, Schroeder)

• When notice by mail is returned (Jones v. Flowers) Service of Process

Basics

• Process = summons + complaint

• 2 available challenges: Insuff process 12(b)(4), insuff service 12(b)(5)

• Note that PJ could be an issue, even if service was ok

Individuals in the US, FRCP 4(e)

• 2(A) deliver personally,

• 2(B) leave it at the home w/ someone of age + discretion,

• 2(C) deliver to agent authorized by appointment or by law,

•

(1) Use method of service in state where fed ct sits,• (1) If service is made outside state where action was commenced, you can

use that state’s service rule.

Individuals outside the US: FRCP 4(f)

Corporations, Partnerships, Associations

• Inside the US

♦ FRCP 4(h)(1)(a): directs to 2 FRCP 4(e)(1) options

♦ FRCP 4(h)(1)(b): adds agent/ officer methods

Hellenic Challenger- not restricted to formal titles.

Waiver of Process

• FRCP 4(d): 30 days to return or charged if domestic D

♦ 4(d)(3): incentive to waive- 60 rather than 20 days to respond

Timing

• FRCP 4(m): P has 120 days w/in filing to serve, or can dis w/o prejudice

Return of Service

• FRCP 4(l): P must file after serving

• False return of summons and judgment: ruling stands (Miedreich)

Immunity



• Purpose: protect from interferences w/ judicial process.

• Proper where served when only there to be a witness (State ex relSivnksty) or statute governs

Etiquette

• Purpose: limit gamesmanship, don’t allow tricks

• Fraud affection jurisdiction = lack of jurisdiction (Wyman) Opportunity to be Heard

Constitutional Requirement: DPC requires at a “meaningful time” and in a“meaningful manner.” Goldberg.

Constitutional limits

• (1) Deprivation by government:

♦ Mathews balancing test: (1) private interest that has been affected bygovernment action (risk of erroneous deprivation of interest through procedures used), (2) the probable value of additional or substitute procedural safeguards, (3) government interest in conserving fiscal andadministrative resources that the additional or substitute proceduralrequisites would entail.

♦ Mathews: Termination of social security disability doesn’t requireevidentiary hearing.

♦ Goldberg: termination of public assistance payments w/o evidentiaryhearing violates DPC

• (2) Deprivation by private individuals

♦ Test: think about process both pre- and post- deprivation whenconsidering whether it meets the Goldberg standard.

♦ Fuentes, no prior notice or op to defend when stove repo’d, violatesDPC

♦ Mitchell, Sequestration order requiring doc proof and judge auth OK ♦ Di-Chem, Conclusory allegations dealing w/ garnishment provision

violate DPC, esp since only need clerk, not judge

♦ Doehr, statute involving pre-judgment attachment of D’s house.Violates DPC

Pleading and Summary Judgment

The complaint

FRCP 3: commence civil action by filing complaint w/ court, gives notice.

FRCP 8: General Rules of Pleading.

• (a) Claims for relief: Pleading stating claim for relief must contain (1)short, plain statement w/r/t juris unless no new grounds needed, (2) short, plain statement of claim showing pleader deserves relief, (3) demand for relief sought, may include relief in alternative/ different types of relief.

• (d) Pleading Concise and direct; Alternative statements, inconsistency

Pleading damages

General damages (foreseeable consequences of injury alleged in petition)

• FRCP 54(c): Relief granted can exceed relief requested in pleadings

♦ Exception: default judgments can’t exceed amount demanded in plds.



• Punitive damages may be stricken if P doesn’t give notice seeking(Anheuser-Busch)

Special damages (not necessary or inevitable result of injury alleged in petition. Ziergovel.)

• FRCP 9(g): must be specifically stated if claimed.

FRCP 12 Motions and defenses 12(a) Timing: Answer w/in 20 days after service, unless waived60 days

from time waiver sent, unless US, then 90.

12(b) Defenses

• Waivable 12(g)(2): (2) Lack of PJ, (3) Improper venue, (4) Insufficient process, (5) Insufficient service of process

• Not waivable 12(h)(2-3): (6) failure to state a claim upon which relief can be granted, (1) Lack of SMJ, (7) Failure to join a party under rule 19

12(b)(6) in depth:

• Purpose: Weed out the bad claims

• Analysis:

♦ Timing: can be any time

♦ Need SMJ and PJ- need them to dismiss on 12(b)(6) b/c substantive iss

♦ Possible grounds for granting: (1) no legal relief available, (2) claimwasn’t adequately alleged

♦ What to use: Only look at pleadings, assume P can prove alleged facts.

• Tests

♦ Conley : Requirement for complaint : give D fair notice of claim andgrounds for it. Requirement for dismissal : beyond a reasonable doubtthat P can’t prove facts to support claim that would entitle him to relief

♦ Twombly (antitrust, allege parallel actions of Ds)

Conceivable Plausible. Pleadings must contain enough facts to raise a reasonable

expectation that discovery will reveal evidence of the illegalagreement.

Reject Conley, which allows for conclusory statements.

♦ Post-Twombly confusion

Does Twombly heighten the pleading standard?

Erickson: refers to Twombly, but only part citing Conley’s fair notice requirement.

FRCP 12(e) Motion for a more definite statement

•

Can’t reasonably file response. Point out defects. 10 days to respond. FRCP 12(f) Motion to Strike

• Court can strike from pleading by motion or on own (1) insufficientdefense, or (2) redundant, immat., scandalous matter. Timing.

The Answer

(1) Admissions and Denials



• 3 choices for each allegation 8(b)(1): (1)admit, (2)deny (general or

specific. Zielinski), or (3) deny for lack of information ( negative pregnant, conjunctive denials)

(2) Affirmative defenses

• 8(c)(1). Must raise in responding to pleading. Includes res judicata, SoL,

waiver, laches, statute of frauds (3) Counterclaims

FRCP 15: Amending the Answer

Without permission: 15(a)(1)

With Permission: 15(a)(2). Court has discretion, grants liberally, but harder once trial has begun

Relation back of amendments, 15(c): Same T&O to relate claim back. Tochange party name, must be same T&O and basically a mistake.

FRCP 11: Truthfulness in Pleadings

Nonfrivolous, believe it’s true, etc. Sanctions. Doesn’t apply to discovery.

Discovery Purposes: Preserve evidence, narrow issue, go fishing (gamesmanship)

The joy of depositions: FRCP 32(a)(4) can use depositions of unavailablewitnesses at trial.

2-part Analysis

• (1) Is discovery permissible under the broad scope of 26(b)(1)?

♦ Rule : Must be (a) relevant to claim or defense, (b) not privileged, (c)reasonably calculated to the discovery of admissible evidence

Gamesmanship: Attorneys will say going for punitive damages b/cgives broader access to financial records.

Discovery plan 26(f)

Protective orders 26(c)(1)• (2) Do any limits to the discovery of relevant information apply?

♦ Privilege, FRCP 26(b)(5)(a)

Expressly make the claims, describe the nature of the documents

Attorney-client, priest-penitent, dr-patient, husband-wife

Attorney-client privilege: (1) “client” (2) “lawyer = (a)“member” of the bar and (b) acting as lawyer, (3)communication relates to a fact of which “attorney” wasformed = (a) by client (b) w/o presence of strangers (c) tosecure (i) legal opinion or (ii) legal services or (iii) legal

assistance and not (b) to commit a crime, and (4) the privilegehas been (a) claimed and (b) not waived by client.

Work product: FRCP 26(b)(3), not a privilege but a protection

(1) info reasonably obtained by other means no discovery

(2) substantial need + substantial hardship maybe

(3) opinion work product can never be discovered. Hickman

Initial Disclosures and discovery sanctions

• FRCP 26(a)(1)(A) Duty to disclose: 4 categories of mandatory initial discl



• FRCP 37 Failure to make Disclosures or to Coop in Discovery: Sanctions

♦ Must try on own first, little court sanctioning, lots of gamesmanship

• FRCP 60(b)(3) Relief from Judgment or Order: fraud, misrep, misconduct

♦ Cummings

The duty to supplement responses, spoliation and the duty to preserve

evidence• Duty to supplement responses: FRCP 26(e), discovery = ongoing duty

♦ Also must fix incomplete, incorrect responses.

• Spoilation: Duty to not destroy ev begins even before lit starts. Silvestri

Discovery Devices

• FRCP 30: Oral Deposition

♦ High impact, high cost. Cross-examination allowed.

• FRCP 31: Written Depositions

♦ Cheaper but low impact, no follow-up, only serve on parties to theaction

• FRCP 33: Written interrogatories♦ Questions written, sent by mail

♦ Cheaper but low impact, no follow-up, only serve on parties to theaction

♦ 33(d) business records- must specify where they are

• FRCP 36: Request for Admissions

♦ Must admit, deny or say why you can’t/ shouldn’t have to answer.

♦ Silence presumption of admission

♦ Only good for litigation at hand

♦ Gamesmanship- deny much more than really should.

♦ Cheap

• FRCP 34: Production of Documents and property

♦ No court order needed, responding party must go to court to block if feel inappropriate.

♦ Gamesmanship: often draft broadly and produce w/ as narrow aconstruction of request as possible. OR send a ton of stuff to siftthrough.

• FRCP 35: Physical and Mental Examinations

♦ Need court motion, must demonstrate good cause

Expert Witnesses

• Testifying experts: FRCP 26(a)(2). Requires extensive disclosure

• Non-testifying experts: FRCP 26(b)(4)(B): No disclosure unlessexceptional circumstance

Summary Judgment, Voluntary Dismissal and Default Judgments

Summary Judgment, FRCP 56

Purpose: Get rid of claims that don’t need a trial for resolution

56(c): Moving party must show (1) no genuine issue of material fact AND(2) entitled to judgment as a matter of law.



Proof and Process (FRCP 56)

• (e)(2): Nonmoving party must respond directly

• (c)(1)Material Fact: Fact that will affect case outcome

• (c)(1) Genuine issue of material fact: Jury could reasonably reach dif conclusions w/r/t the fact

• (c)(2) Judgment as a matter of law: Whole claim thrown out of P can’t prove one element of claim.

• (d) Partial summary judgment

• (f) Continuances to allow nonmoving party to develop case, discretionary

What to look at

• GIoMF: Pleadings, discovery and disclosure materials on file, anyaffidavits- doesn’t have to be admissible evidence

When to Grant

• (1) Moving party bears the burden of persuasion at trial

♦ Moving party must show would be entitled to a directed verdict at trial

♦

Burden then shifts to nonmoving party to controvert.♦ Celotex: need not negate non-moving party’s claim

• (2) Non-moving party bears the burden of persuasion at trial

♦ (a) Submit affirmative evidence negating an essential element of thenon-moving party’s claim OR

♦ (b) Demonstrate that non-moving party’s evidence is insufficient toestablish an essential element of his claim. Celotex

• Celotex (D demonstrated that P couldn’t carry burden of proof of showingasbestos exposure at trial)

• Lundeen (Clear affidavits of the only persons who could know the factscan be a basis for SJ)

• Cross (Judge can’t draw fact inferences on a motion for SJ) Evidentiary standard

• Comport w/ evidentiary standard that will be set for trial- what could the jury reasonably find given the standard? Anderson (libel case, requiresclear and convincing evidence that D had actual malice)

• Absence of plausible motive is relevant in det. GIoMF. Matsushita

• Court can’t adopt P’s version of facts when blatantly contradicted by therecord. Scott

Voluntary and Involuntary Dismissal: FRCP 41

(a) Voluntary Dismissal

• Purpose: Get out of lawsuit w/o affecting legal rights before waste $, jud r • Rule: 41(a)(1): w/o court order if (i) before receive answer or motion for

SJ, or (ii) signed stipulation by all parties. W/o prejudice.

• (a)(2) by court order, default = w/o prejudice.

(b) Involuntary Dismissal

• D may move b/c P failed to prosecute w/ due diligence, or court can do iton its own, usually w/ prejudice, very discretionary (Link / pretrial conf)

Default Judgments: FRCP 55



Default

• Clerk may enter when fail to plead or defend. Requires no notice.

• 55(c): Motion to set aside default by showing good cause.

• 60(b): Can also use to set aside defaults.

Default Judgment: (b)(1), Default + complaint for certain sum +no D

appearance + not a minor or incompetent, enter DJ in that amount. (b)(2)otherwise it goes to court, trial judge has discretion.

• 60(b) motion to set aside default judgment: stricter standard

• Notice to other side: (b)(2) requires notice where party has appeared

Trial by Jury and JMOL

Jury Trials

Federal Constitutional Right to Jury Trial

• 7th A : right of a jury trial shall be “preserved”

• Test : (1) Issue of fact underlies claim for legal relief jury, (2) issue of

fact underlies claim for legal and equitable relief jury, (3) issue of fact

underlies a purely equitable matter judge w/ no jury.♦ Legal or equitable? Terry test:

(1) Look at 18th cent. statutory action before merger- legal or equit

(2) Is remedy sought legal or equitable in nature? (more emphasis)

• Division of labor btw judge and jury

♦ Judge instructs jury on applicable law, jury applies it to the facts

FRCP 51: if you don’t object to the instruction, you waive right

♦ Is it a question of law or fact? Markman Test:

(1) use historical evidence and precedent. (2) When murky, ask who’s in a better position to decide.

Demand and waiver of jury trial: FRCP 38

• If it’s jury triable and either side demands a jury trial, you get one.

• FRCP 38(b)(1)- serve other side w/ written demand, 10 days

• FRCP 38(c) you can specify which of jury triable issues you want j.t. on

• FRCP 39(b): court has discretion, on motion, to order jury trials thatweren’t previously demanded.

JMOL (Directed Verdict): FRCP 50(a)

Purpose: Once trial has begun, keep cases from going to a jury when areasonable jury couldn’t find for the non-moving party.

FRCP 50(a):

• (1) Rule: Court can grant JMOL on claim, defense, issue when finds a

reasonable jury wouldn’t have a legally sufficient evidentiary basis to findfor the party on that issue.

• (2) Motion. Any time before case goes to jury.

• What’s a legally sufficient evidentiary basis?

♦ (1) Mere scintilla test: A few states. Barely need anything to go to jury. Brown



♦ (2) Plaintiff’s evidence test: JMOL only if evid. supportingnonmoving pty, in light most favorable to that pty, isn’t enough.Wilkerson

♦ (3) Federal Standard: (a) Nonmoving party’s evidence in light mostfavorable to it + (b) other party’s non-contradictory evidence. Boeing

A mere scintilla of evidence is insufficient Use this to interpret 50(a)

Timing: (1) D can move for JMOL directly after P presents evidence, (2)Both can move for JMOL after D presents evidence in response to P.

Post-trial Motions

JNOV: Renewed motion for JMOL: FRCP 50(b)

Purpose: If overturned, no risk of new trial (Redman: this is okay)

Requirement: Previously filed JMOL (chance to cure/ avoid gamesmanship)

Limits: Limited to JMOL you filed; depends on where, what you objected to.

Standard: Same as JMOL.

Standard on review: Abuse of discretion.

Timing: FRCP 50(b), no later than 10 days after entry of judgment

Never denied: Automatically reserved if JMOL not granted.

Possible outcomes: (1) keep verdict, (2) new trial, (3) direct JMOL

Combined JNOV and New Trial Motions

FRCP 50(c): When combined 50(b) and 59, determine if there should be anew trial conditional on how JMOL ruling is treated on appeal.

• Result: JMOL ruling upheld, no new trial. JMOL ruling shot down,moving party preserved option of new trial rather than keeping verdict

FRCP 50(d): You win at trial, 50(b) granted against you, you can move for new trial w/in 10 days- might happen if you had objections to original trial.

FRCP 50(e): You win at trial, JMOL not granted against you. You can arguethat there are grounds for a new trial in case the other party appeals and theCourt of Appeals rules JMOL should have been granted against you.

Motion for a new trial: FRCP 59

Standard

• Errors in the trial process: Must be prejudicial, had to obj at trial to preserve, must move w/in 10 days

• Verdict is against the clear weight of the evidence: Consider credibilityof witnesses. Weaker than JMOL/JNOV standard. Gasperini: reviewunder abuse of discretion standard.

Appeals: No interlocutory appeal available- no final judgment Conditional New Trial: If JNOV fails, file for JNOV and c.n.t. at once.

Remittitur , Addittur (unconst)

Timing: FRCP59(a) 10 days after entry of judgment

Motion for relief from a judgment or order: FRCP 60

(a) blunders in execution like clerical errors

(b) Bases for relief, w/in reasonable time, discretionary, hard to get. Includesmistake, fraud, based on earlier judgment that was reversed.



• When the law changes after judgment, not enough. Title

• Newly discovered evidenced: Patricks criteria, (1) would probablychange result, (2) discovered since trial, (3) couldn’t have been discovered before trial by due diligence, (4) material, (5) not merely cumulative/impeaching.

• Perjured testimony: If material, judgment set aside. Peacock Records Appeal

The Final Judgment rule

Statutory: 28 USC 1291. CoA has juris over all final decisions of dist. courts.

Examples

Final Judgment Not a final judgment

12(b)(6) granted 12(b)(6) denied

Summary Judgment Granted Summary Judgment Denied

JMOL granted (prob. Partial)

JMOL denied

Renewed JMOL denied Renewed JMOL granted (prob partial) New trial granted (SOMETIMES final) New trial granted (SOMETIMES)

Liberty Mutual: partial s.j. only onliability, not on relief sought. Ordersnot appealable as final judgment.

Exceptions to the final judgment rule

• Certification of interlocutory appeal, 1292(b)

♦ Both trial judge and ap judge must agree that (1) controlling questionof law (2) substantial ground for difference of opinion, AND (3)immediate appeal may materially advance ultimate termination of litigation

Dis ct says all 3 are there- certifies, then circuit court has discretion

• Cases involving multiple claims: FRCP 54(b)

♦ District court judge can enter final j. on some but not all of claims if (1) enter final j. on severable and (2) determines there’s no just reasonfor delay. Deferential standard. Mackey

• The Collateral Order Doctrine

♦ Effectively unreviewable on appeal from final judgments Will

• Pragmatic Finality

♦ Basically finished- need finality to move on. Brown Shoe

Mandamus (not tested)

Timing for appeal: Time limit begins to run w/ final j. usually 30 days. Standard for review: (1) questions of law de novo, (2) questions of fact

very deferential, (3) mixed questions abuse of discretion standard.

Claim and Issue Preclusion

Claim Preclusion (Res Judicata)

Purpose: Prevent claims from being split into two separate suits

Test:



• (1) Case 1 resulted in a final judgment (ok if appeal to f.j. pending)

• (2) Judgment in Case 1 was on the merits

♦ w/ prejudice = on the merits, w/o prejudice isn’t

♦ P must have full op to litigate on the merits

♦ JMOL counts, so does 12(b)(6) dismissal in some states after

amendments or when amendments are futile.• (3) The decision in Case 1 was valid (no fraud, had SMJ and PJ)

• (4) The claims must be the same in Case 1 and Case 2

♦ Federal and Restatement approach: Same T&O, can’t relit later if youfailed to join at first.

♦ Exception: 2 disease rule (asbestos/ cancer) in many state courts

♦ Primary rights approach

♦ Same legal theory test

• (5) Case 1 and Case 2 were asserted by the same Claimant (or their privy)against the same defendant (or their privy).

♦

Substantial control: Privy if had. Burden of proof on moving party.♦ Virtual representation: show nonparty has had actual/constructive

notice of earlier litigation and the balance of equities tip preclusion.Adequacy of rep. not dispositive.

• Rule-Based Res judicata : If you didn’t bring a compulsory claim, you’reclaim precluded. Policy: keep in line w/ rules.

Issue Preclusion (Collateral Estoppel)

Purpose: Avoid relitigating the same issue twice.

Test:

• (1) Case 1 ended in a valid final judgment on the merits

♦ See C.P. (1-3)

• (2) The issue in the second case is the same as the issue in the first.

♦ Consider: (a) substantial overlap in evidence or argument, (b)application of the same rule of law, (c) similarity in pretrial prep anddiscovery, (d) How closely related are the claims involvedRestatement (Second) of Judgments, 27

• (3) The issue was actually litigated (Raised at trial)

• (4) The issue was actually decided in the previous action

♦ must have been a winner on the issue

• (5) The issue was necessary to the court’s judgment

♦ Test: If the finding on the issue had come out the other way, would the

judgment be the same?♦ General verdicts: What if court finds for lit on 2 indep, suffic grounds?

Neither gets IP (Halpern, bankruptcy)

Alternate rule: both get issue preclusion (Winters)

Or estoppel if record both holdings got full consideration Malloy

Parties and Mutuality in Issue Preclusion

General Rule: Nonmutual estoppel estopped party must have been a partyin 1st suit, had chance to litigate the issue. Granting is always discretionary.



Nonmutual Defensive Collateral Estoppel

• Case 1: P1 v. D1 (P1 loses on issue X)

• Case 2: P1 v. D2 (D2 tries to use IP to prevent relitigation of issue X)

• Blonder-Tongue Test: Consider fairness, doesn’t matter if D2 couldeasily have joined. Goal = minimize litigation. (University/ patent infring)

Nonmutual Offensive Collateral Estoppel• Case 1: P1 v. D1 (D loses on issue X)

• Case 2: P2 v. D1 (P2 seeks to use issue preclusion to establish issue X inaction against D.)

• Parklane Test: Consider (1) Whether party using IP could easily have joined, (2) Fairness to D: (a) incentive to vigorously litigate, (b) procedural op.s differ, (c) inconsistent judgments on books when Case 2litigated. (Securities actions, test completely passed)

State of the Law

• Mutuality jurisdictions don’t allow either

• Some states allow defensive, bar offense

• Federal approach and some states: allow both

• Burden = on party seeking to use preclusion

• Gov: no nonmutual IP can run against the gov, but it can use it against Ds

• Favors one-shotters over RPs

Class Actions

Policy: Efficiency + empowerment of Ps v. fairness to absent class members

Transubstantive: Special CA rules in securities fraud, immigration, legalservices.

Certification: FRCP 23(a)

Stakes: high for D, huge incentive to settle.

Finality: Certification never final. Appeal entirely discretionary. Requirements:

• (1) Identifiability, defining the class: 23 (c)(1)(B). Definition must be precise, objective, presently ascertainable. Shouldn’t depend on subjectivecriteria or merits of the case or require extensive factual inquiry todetermine who is a class member.

• (2) Class Representative must be a member of the class: Must have

standing. Mootness of claim excused if post-cert or nature expire, suchas pretrial detention w/o probable cause. 23(a)

• (3) Numerosity: Joinder of claims impracticable. 25-bad, 40 ok, middle?

• (4) Commonality: Common questions of fact or law requirement, broadinterpretation, even one significant common question sometimes enough.Critical question: Will differences in factual bkg of each claim affectoutcome of the legal issue?

♦ Las Vegas phone surcharge

♦ Compare to Joinder, rule 20



(5) Typicality: Representative’s claims are typical of the class when (1) eachclass member’s claim arises from the same course of events, and (2) eachclass member makes similar legal arguments to prove the D’s liability.

• Falcon (Mexican-americans try to prove discrim in hiring practice in CA)

♦ Pleadings must show a clear and specific link btw indiv and class

claims. Evidence showing that indiv was passed over b/c of his ractdoesn’t alone carry a presumption that there’s a systematic policy of discrimination at the company.

(6) Fair and Adequate Representation: (a) DPC concerns + (b) pragmaticconcern over adequacy of rep to avoid collateral attack.

• Goals: (1) Uncover COIs btw named party and class represent, and (2)ensure named P resps class interest w/ sufficient vigor

• Securities-fraud cases: Private Securities Litigation Act, must be one w/largest financial interest in relief sought.

Types of Class Actions: 23(b)

(b)(1): Prejudice class actions: mandatory class action created by cert- no

opt out, no notice requirement.• Decision to cert consider prejud. To nonclass parties and whether this

would impair their abilities to protect their interests.

• 2 kinds: (a) If didn’t cert, incompatible standards of conduct for opposing party could result from multiple indiv suits, (b) if didn’t cert, couldimpair/impede non-included parties’ ability to protect their interests.

(b)(2) Injunctive and declaratory relief : Mostly civil rights, employmentdiscrimination, consumer, or environmental cases. Goal = change D behavior/ policy prospectively, not to provide indiv comp. No opt out.

(b)(3) Damages Class actions- mass torts, etc where members claim to have been injured in the same way by the D.

• Requirements: (1) Predominance: common questions predominate over questions affecting only individual members, AND (2) Superiority: TheCA is superior to other available methods for fairly and efficientlyadjudicating the controversy.

♦ *See 23(b)(3)(A-D) for discretionary factors, including likelydifficulty of managing a class action. Castano

• Judges might peek ahead at the merits in deciding to certify

Notice

(b)(1) and (b)(2) no notice requirement though many do- discretionary

(b)(3)- notice is mandatory

Standard: 23(c)(2)(B): Notice requirement is higher standard than Mullanerequires: “best notice that is practicable under the circumstances, includingindividual notice to all members who can be identified through reasonableeffort. Must have op. to present objections. Shutts

Content: see (c)(2)(B)

Costs: borne by party bringing the class action.

• If class is successful, costs of notice can be subtracted from the classrecovery. Eisen



Appealability

Discretionary b/c cert decision isn’t final

FRCP 23(f): Discretionary interlocutory appeal of certification order

Settlement/ Voluntary Dismissal

FRCP 23(e) Rule (1) court approval (2) notice and op to object to all class

members, (3) for 23(b)(3)s, second opportunity to opt out Only applies when CA certified

Burden: those who propose settlement must show fair, reasonable, adequate

Settlement known from start: 23(b)(3) manageability requirement will beless stringent (Anchem)

Opportunity to be Heard

Special Rule: since interests of those not joined in CA same as those who are,and where latter fairly rep the former in prosecution, DPC concerns are met

Only bound if was adequate representation by parties present (Hansberry)

SMJ

Diversity Jurisdiction• Diversity of parties: Only look at citizenship of class reps (Ben-Hur)

• AIC requirements

♦ 1367/ CAs, as long as representative has sufficient claim, other members of class can tack on. Exxon Mobil

OR see CAFA, 28 USC 1332(d)(a)

• Basic rule

♦ Minimum Diversity (Single D from a single P) and total of more than$5 mil in controversy, CA allowed.

♦ Unincorp’d associations: treat like corp for citizenship. 1332(d)(10)

♦ Remember, this is for federal courts only, adds to what you can get

through 1367• Exceptions: 1332(d)

♦ (1) Primary Ds = states, st officials, or other gov entities 1332(d)(5)(A)

♦ (2) Class contains less than 100 members (d)(5)(B)

♦ (3) Only contains claims involving a covered security or corporategovernance issues. (d)(9)

♦ (4) Greater than 2/3 of the members are citizens of the state in whichthe action was filed and at least one D from whom significant relief issought and whose alleged conduct forms a signif basis for claimsasserted by the proposed P class is also a citizen of that state. 1332(d)

(3) Judge’s discretion in this case: 1332(d)(3)

(A-F)

Personal Jurisdiction and Choice of Law

Personal Jurisdiction

• For Ps, we’re not so concerned about minimum contacts- for DPC, justrequire notice + opportunity to be heard, b/c they bear less of a burdenthan Ds and have ability to opt out. Shutts



Choice of Law

• Due Process Clause and the Full Faith and Credit Clause limits on Choiceof Law:

• These restrictions required ‘that for a State's substantive law to be selectedin a constitutionally permissible manner, that State must have a

significant contact or significant aggregation of contacts, creatingstate interests, such that choice of its law is neither arbitrary nor

fundamentally unfair.’ Allstate

• If the law of the state court hearing the case does not conflict with the lawthat would be applied, you don’t need to worry about it.

• Considerations: fairness in the expectations of the parties, idea of overreaching state boundaries

Venue: Only look at residence of class rep, ignore residence of absent classmembers for venue purposes.

Preclusion in Class Actions: A judgment in a properly entertained classaction is binding on class members in any subsequent litigation. Basic

principles of res judicata (merger and bar or claim preclusion) and collateralestoppel (issue preclusion) apply. A judgment in favor of the plaintiff classextinguishes their claim, which merges into the judgment granting relief. A judgment in favor of the defendant extinguishes the claim, barring asubsequent action on that claim. A judgment in favor of either side isconclusive in a subsequent action between them on any issue actually litigatedand determined, if its determination was essential to that judgment.” Cooper

• *What about parties that opted out- are they precluded? Didn’t have

op to litigate, so I don’t think can’t be- only those that litigated and

lost can be estopped against.